Judicial Disagreement need not be Political: Dissent on the Estonian Supreme Court

Hanretty, Chris

doi:10.1080/09668136.2015.1054260

Cited by 13 publications

(10 citation statements)

References 23 publications

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“…Here, put simply, dissent arises from political disagreement between judges. This approach has found empirical confirmation in a multitude of contexts, from the U.S. Supreme Court (e.g., Wahlbeck et al ) to the various constitutional courts of Europe (e.g., Hanretty () on Portugal and Spain; Hanretty () on Estonia; Bricker () on Eastern‐European courts) and Latin America (e.g., Tiede () on Chile).…”

Section: Literature Reviewmentioning

confidence: 99%

Dissent Aversion and Sequential Voting in the Brazilian Supreme Court

Lopes¹

2019

J Empirical Legal Studies

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The literature on judicial behavior indicates that dissent is costly to the individual judge, for it means an increased workload and the incurrence of reputational costs. This observation leads to the concept of dissent aversion, which is the notion that judges may refrain from dissenting, even though they disagree with the court's position, in order to avoid those costs. In this article, I explore the fact that voting at the Brazilian Supreme Court is sequential, and that this sequence varies in almost every single case, to generate a quasi‐experiment that allows for a clearer identification of dissent aversion than is found in other contexts. The main idea is that after a majority has been formed, the justices who vote in sequence know that their votes cannot change the outcome of the case. Hence, they may deviate from their preferred votes and join the majority to avoid the costs of dissenting. Using a unique dataset with vote‐level data of all abstract review cases heard by the full Court from 1990 until 2015, this study finds strong evidence of dissent aversion in the Brazilian Supreme Court. Judges who vote after the pivotal judge are significantly less likely to dissent.

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Section: Literature Reviewmentioning

confidence: 99%

Dissent Aversion and Sequential Voting in the Brazilian Supreme Court

Lopes¹

2019

J Empirical Legal Studies

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“…Scholars of judicial politics in western Europe ought to be more attuned to these possibilities, since two regional courts in the CJEU and the ECtHR demonstrate judicial preferences that are not left/right preferences but are closer to centre/periphery preferences (Malecki 2012; Voeten 2007). In other (national) courts, there is evidence that, although judges' preferences can be distinguished, these preferences relate to the appropriate degree of deference to give to public authorities – preferences which are partly political (insofar as they relate to the appropriate degree of state intervention) and partly legal (Arvind & Stirton 2016) – or to the appropriate degree of support to give to plaintiffs rather than respondents (Hanretty 2015a). It is not yet clear whether apex courts in Western Europe more closely follow the model of the Supreme Court of the United States, where left/right preferences are paramount, or whether instead they are characterized by subtler political differences.…”

Section: Literaturementioning

confidence: 99%

“…This literature has been substantially aided by systematic attempts at data gathering for different apex courts (in Germany, through the DFG‐funded project ‘The Federal Constitutional Court as a veto player’; in Norway, through work reported in Grendstad et al (2015b); and in Israel, through the Israeli Supreme Court Database), and by the use of advanced techniques for the analysis of judicial behaviour (Martin & Quinn 2002; Clinton et al 2004). These developments have led to multiple discoveries suggesting that judges' preferences are more complicated than purely attitudinal or legal models suggest (Epstein & Knight 2013; Hanretty 2015a; Arvind & Stirton 2016). For many countries, we do not yet know what drives disagreement between judges.…”

Section: Introductionmentioning

confidence: 99%

The Government Deference Dimension of Judicial Decision Making: Evidence from the Supreme Court of Norway

2020

Self Cite

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Past research has revealed conflicting findings regarding the degree to which judges on European apex courts enact their policy preferences or instead disagree on the basis of divergent legal views. We investigate disagreement between judges on the Norwegian Supreme Court between 1996 and 2016. During this period, the court dealt with a greater volume of policy-relevant cases than previously. The method of appointment to the court was also changed to a judicial appointments commission. We analyse non-unanimous cases using item response theory models. We find that judges are not divided along left-right lines but instead disagree about the appropriate degree of deference to give to public authorities. There is no significant association between the appointing government and judges' ideal points either before or after the reform to appointments. Judges who were formerly academics are however much less deferential than career judges or judges who were previously lawyers in private practice.

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“…Though studies of US courts have led to a better understanding of why judges issue separate and dissenting opinions, relatively little is known about the practice of dissent in other environments (see Keleman ). A notable exception is Chris Hanretty's () examination of cases with dissenting opinions from the Spanish and Portuguese Constitutional Courts and from the Estonian Supreme Court. Hanretty uses these dissenting votes to establish judicial ideal points and to demonstrate the existence of policy‐based and jurisprudential cleavages in different courts .…”

Section: Why Dissent?mentioning

confidence: 99%

Breaking the Principle of Secrecy: An Examination of Judicial Dissent in the European Constitutional Courts

Bricker¹

2017

Law & Policy

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As "oracles of the law," judges are trained to provide certainty and guidance within an oftenuncertain legal landscape. Nowhere is this statement truer than in the civil law tradition, where the idea of legal certainty has been prized as a "supreme value." Despite this tradition, dissenting opinions are now quite common within most European constitutional courts. Using new data from five countries and interviews with constitutional court judges and clerks, I investigate factors that contribute to dissent on constitutional courts. Results indicate that legal and policy characteristics matter, but so do judicial backgrounds and the issues reviewed.

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Judicial Disagreement need not be Political: Dissent on the Estonian Supreme Court

Cited by 13 publications

References 23 publications

Dissent Aversion and Sequential Voting in the Brazilian Supreme Court

Dissent Aversion and Sequential Voting in the Brazilian Supreme Court

The Government Deference Dimension of Judicial Decision Making: Evidence from the Supreme Court of Norway

Breaking the Principle of Secrecy: An Examination of Judicial Dissent in the European Constitutional Courts

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